de Pinto v. Canada (Minister of Citizenship and Immigration), docket IMM-4895-97

Date: 19980702

Docket: IMM-4895-97

BETWEEN:

                                           DE PINTO, AMBROCIUS RAY VISWAJ

                                                                                                                                          Applicant

                                                                        - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                     Respondent

                                                        REASONS FOR ORDER

REED, J.:

[1]         The applicant appeals a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") that found him not to be a convention refugee. The Board found he lacked credibility.

[2]         Counsel for the applicant's main argument is that the Board erred because it failed in its reasons to mention the applicant's disability, a serious cleft palate, which disability could explain much of his evidence as to what occurred in Sri Lanka and some of the reasons the Board thought his testimony before it was at some points ambiguous or evasive.

[3]         I have not been persuaded that the Board ignored his disability. The Board would have been aware of it throughout the hearing. The applicant was given a particular interpreter to assist him so that he could communicate at the hearing. I think a more likely interpretation of the Board's failure to mention the disability is that the Board did not consider it to be a relevant consideration; the Board assessed his evidence on the merits as it understood them.

[4]         Also, the suggestion that his disability could explain much of what happened in Sri Lanka is speculation. It was not put forward in the applicant's own testimony to the Board as a reason for the situation in which he found himself. He did testify that he did not have many friends and this inhibited his ability to know the details of what was going on in Sri Lanka.

[5]         The applicant was a licensed automobile mechanic. Although counsel now argues that his disability prevented communication. He worked as a mechanic for ten years and was able to communicate for that purpose. One can accept, however, that his severe disability did result in some social isolation. He is Singhalese. He became involved with a young Tamil girl who convinced him to assist her cousin by purchasing automobile parts, particularly batteries, for shipment to Tamils in the north of Sri Lanka. This was against Sri Lankan law. The LTTE need batteries for explosive devices. His evidence to the Board was that he knew purchasing parts for sale to Tamils in the north was against the law but he thought the law was unfair to Tamils. Also, he chose to accept his girlfriend's explanation that the parts were going to Tamil relief organizations, not the LTTE, even though he suspected they might be going to the LTTE. In any event, the activity came to the attention of the Sri Lankan authorities; the applicant was arrested but let go after a short detention; his girlfriend and her cousin were arrested. He fled Sri Lanka and claims refugee status on the ground that he would be killed there, even though innocent, and one of the reasons he would receive such treatment was because he, a Singhalese, had struck up a relationship with a Tamil girl, and inter-racial relationships are not tolerated.

[6]         The Board did not believe his story about supplying parts to the north. The Board members were of the view that had this been occurring and had he been arrested, he would not have been released so easily. The Board also doubted that the purchasing activity could have gone on for a whole year without some of those who were selling him parts asking questions. The Board considered the allegation that Singhalese-Tamil marriages or relationships are not tolerated, and came to the conclusion that this was not borne out by the weight of the evidence.

[7]         Also, the allegation that the Board made general statements impugning the applicant's credibility without specific examples being given has limited validity. There were occasions in which it is clear that his evidence was evasive, for example, his evidence concerning his suspicions as to where the parts were going and the extent of his girlfriend's and her cousin's involvement with the LTTE.

[8]         It was open to the Board to disbelieve the applicant's story about the purchase and sale of automotive parts. A reviewing court does not substitute its decision for that of the tribunal. Most importantly, however, the allegation that the applicant's speech impediment explained his easy release by Sri Lankan authorities and inhibited questions being asked of him at an early stage about his purchase of parts is pure speculation by counsel. It was not raised as a factor in any of the applicant's evidence before the Board.

[9]         While I might have decided the case on a different basis than that relied upon by the Board, the challenge to the Board's decision, on the ground put forward, cannot succeed.

Judge

OTTAWA, ONTARIO

July 2, 1998

FEDERAL COURT OF CANADA

TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD